Opinion | Commentary - Distribution

EPA withdraws anti-aftermarket proposal

In an unusual move, the Environmental Protection Agency (EPA) announced in April that it was withdrawing a proposal it had made last summer as part of a broad greenhouse gas emissions proposed rule. The agency very rarely drops proposals because of industry and congressional protests. But the announcement was particularly good news for the aftermarket, since the now-deceased proposal would have inhibited aftermarket sales to the racing car industry.

The provision – which would have prohibited aftermarket noodling with emissions systems – is just one of many very technical proposals in Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles-Phase 2 proposed rule.

That proposed rule had mostly to do with emissions of big trucks. But the agency slipped in a proposal that reversed its past policy with regard to emissions equipment sold in the aftermarket to racing cars. No one noticed that at first. Then the Specialty Equipment Market Association (SEMA) found that policy reversal buried in the July proposed rule. That discovery was made last December.

In early March, legislation was introduced in both the House and Senate that would have prohibited the EPA from reversing its policy. Sixty-seven members of the House signed on as co-sponsors of the Recognizing the Protection of Motorsports Act of 2016 (RPM Act of 2016). The bills (H.R. 4715 and S. 2659) would have reverse the tentative EPA decision to make it illegal for autos purchased from dealers to be converted into race cars.

Rep. Patrick McHenry (R.N.C.), chief sponsor of the House bill, was able to convince the House Science, Space and Technology's oversight subcommittee to hold a hearing on his bill soon after he introduced it. That took place on March 15, 2016. The EPA, just a few weeks before, had asked industry sectors affected by the proposed rule to provide additional information on some elements of the July 2015 proposed rule, including the race car measure. So the agency was already getting, if not cold, then chilled feet, with regard to that provision.

"The federal government has no place at a track testing vehicle emissions as if it’s a public road," McHenry told the House subcommittee. "This regulation targets businesses who manufacture the aftermarket exhaust systems that replace the stock systems."

Christopher J. Kersting, President & CEO, SEMA, testified at that same House hearing. He made the case the EPA proposal would hurt aftermarket sales beyond emissions components. "Competition use vehicles are modified in shops across the nation and the vehicles are outfitted with safety equipment such as five-point seat belts, roll bars, cages and safety netting, suspension, wheels and tires," he explained. "These ancillary sales and services would cease as a result of the EPA’s proposed policy because performance modifications to make the vehicles suitable for racing would be prohibited."

From the start, it was questionable whether the EPA had the authority to go after converted racing cars because of their GHG emissions. The current EPA policy allows aftermarket parts to be used so long as there is a “reasonable basis for knowing that such use will not adversely affect emissions performance.”

The Congressional Research Service, which is a nonpartisan body with no dog in this fight, provided some fuel for SEMA's (and also the EPA's opposite) position when it said it could not identify any provisions within the Clean Air Act, which would explicitly allow or preclude EPA from reclassifying motor vehicles as some other class of vehicle. Given the congressional opposition, the CRS's view that maybe the EPA was acting outside its authority probably had a role in the agency crumbling.

In mid-April, the EPA quietly put out this statement: "The proposed language in the July 2015 proposal was never intended to represent any change in the law or in EPA’s policies or practices toward dedicated competition vehicles. Since our attempt to clarify led to confusion, EPA has decided to eliminate the proposed language from the final rule."

McHenry says he still wants Congress to pass his bill, just in case the EPA tries to slip the aftermarket provision into another rulemaking in the future.

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